Judge rules human embryo ‘property’ of ex-wife in divorce case

Catholic bioethicist Moira McQueen blasted the ruling as a 'grave error in law.'
Sat Aug 4, 2018 - 7:30 am EST
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SUDBURY, Ontario, August 4, 2018 (LifeSiteNews) — An Ontario judge ruled a frozen human embryo that a now-divorced Canadian couple bought in the United States is the “property” of the ex-wife in what experts say is a precedent for future cases.

But Catholic bioethicist Moira McQueen blasted the ruling as a “grave error in law” and an “error in fact” because Canada prohibits — so far — the buying and selling of human eggs and sperm.

Indeed, Superior Court Justice Robert Del Frate noted this when commenting on the precedent-setting case, but said no one raised that legal conflict, Canadian Press reported.

In a decision released Wednesday, Del Frate wrote he relied on contract law because “there is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos.”

The case involves a couple, identified in court documents as D.H. and S.H., who married in 2009 and in 2012 paid $11,500 US to an American facility to conceive four human embryos from donated eggs and sperm. Two of the embryos were viable and sent to a Mississauga fertility clinic, according to Canadian Press.

After one embryo was implanted in D.H., she gave birth to a son, while the other embryo remained frozen in storage. The couple separated eight days after the boy was born and rancorous divorce proceedings followed, CBC reported.

Del Frate awarded the embryo to D.H., now 48, based on the contract the couple signed at the Canadian fertility clinic, according to CBC. It stipulated the clinic would respect the “patient’s wishes” in the event of divorce, and defined the wife as the patient.

The couple clearly regarded the embryos as property, with both signing the contracts, and planned to own them jointly, Del Frate wrote.

“It would be contrary to contract law were I to decide that the wishes of the parties at the time of entering into this contract were other than what they agreed to. One cannot apply buyer's remorse,” he observed.

“As it is not possible to simply split the embryo and it cannot be sold and the proceeds divided, ownership must be determined based on the agreements and the parties’ intentions.”

The judge calculated the four embryos were worth $2,875 US each, and awarded S.H. $1,438 for his half-share in the remaining one.

“It is the first time, to the best of my knowledge, where a judge came out and explicitly stated that an embryo should be treated as property,”  Toronto-based lawyer Sara Cohen, who specializes in fertility issues, told Canadian Press.

But in this case, the embryo had no genetic connection to the couple, she said.

“The decision we’re waiting for is what happens when people do have a genetic connection to the embryo – is it still possible to treat an embryo like property,” Cohen said.

Bioethicist McQueen decried the “utilitarian approach to early human life” that the judgement “illustrated vividly.”

“A human embryo should never be treated as property to be bought and sold, nor argued over in court,” she told LifeSiteNews in an email.

The director of the Canadian Catholic Bioethics Center and professor of moral theology at the Toronto School of Theology, McQueen says the judge got it wrong.

“In saying the woman had to pay her share of the costs of obtaining the embryo, the Canadian judge is making a grave error in law (Canadian) and then makes an error in fact, in calling the embryo ‘property’ to justify this,” she wrote.

Canada “does not allow sale of gametes, etc., not that I think making embryos is right in the first place,” she noted, adding the Royal Commission on Reproductive Technologies, and the 2004 Assisted Human Reproduction Act, grant the embryo “a measure of respect because it is human life, and cannot therefore be bought and sold (legally).”

Del Frate “is probably accurate in the court of popular opinion in stating that an embryo is property, but Parliament (or the Supreme Court!) would have to change this to make it so, legally,” added McQueen.

Unfortunately, Parliament seems poised to do just that.

Liberal MP Anthony Housefather introduced a private member’s bill in May to decriminalize commercial surrogacy and the buying and selling of human gametes (eggs and sperm).

Chair of the House of Commons Access to the Justice System committee, Housefather defended Bill C-404 on the grounds of “liberty.”

“There is a right to make choices about what one chooses to do with their body. There is a right not to have the state prevent you from seeking to have a child through the sanction of criminal law,” he told reporters at the time.

His bill would prohibit women under 21 years from being surrogates, and those under 18 from donating or selling gametes.

The Association for Reformed Political Action Canada (ARPA Canada) blasted Housefather’s bill as undermining human dignity, and is urging Canadians to write MPs to oppose Housefather’s bill.

Surrogacy commodifies women’s procreative capacities, commodifies children, and is banned around the world as evidence mounts that exploits women, particularly the poor and vulnerable, ARPA Canada noted.

For more information on ARPA Canada’s campaign against Bill C-404, go here.


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